EXHIBIT 10.1
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
PROGRAM AGREEMENT
This Program Agreement (as amended, modified or supplemented from time to time
in accordance herewith, together with all exhibits, schedules, annexes and other
attachments hereto, shall be referred to as the "Agreement") entered into as of
April 18, 2002 between DUSA PHARMACEUTICALS, INC., a New Jersey corporation with
its principal offices located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ("Seller")
and AURIC CAPITAL CORP., a Pennsylvania corporation with its principal offices
located at ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ (together with its successors and
assigns, the "Buyer").
W I T N E S S E T H
WHEREAS, the Seller is desirous of selling certain equipment rental contracts
and equipment therewith from time to time to Buyer, denominated as the Rental
Agreement, together with all exhibits, schedules, annexes and other attachments
thereto, (the "Rental Agreements" in substantially the form as set forth in
Exhibit "A"), pursuant to which the Seller will have agreed, among other things,
to supply and maintain medical equipment and related products more particularly
described on each Rental Agreement (the "Equipment") to various physicians,
hospitals or other qualified Renters of medical equipment (the "Renters" or
"Renters") and Renters will have agreed to make certain payments to Seller for a
stated term in accordance with each Rental Agreement; and
WHEREAS, from time to ▇▇▇▇ ▇▇▇▇▇▇ will submit to Buyer, for credit approval,
either (i) credit applications of applicants prepared to enter into Rental
Agreements or (ii) credit applications of Renters who have entered into Rental
Agreements. Buyer will use reasonable efforts to determine the creditworthiness
of the applicant within forty eight (48) hours of receipt of required credit
information and so advise Seller in writing of either a credit approval or
credit rejection; and
WHEREAS, Buyer desires to acquire said Rental Agreements subject to the terms
and conditions contained in this Agreement.
NOW THEREFORE, it is hereby agreed as follows:
1. PURCHASE AND SALE. (a) Upon the terms and subject to the conditions set forth
herein, the Buyer agrees to purchase from Seller and the Seller agrees to
assign, sell, transfer and convey to the Buyer all of the Seller's right, title
and interest in and to the Rental Agreements pursuant to the purchase agreement
(the "Purchase Agreement" in substantially the form as set forth on Exhibit
"B"). However, neither the payments due under the Rental Agreements nor the
Equipment described therein, and notwithstanding any language contained herein
or in any other document executed in connection therewith, nothing shall be
deemed or construed to constitute an assumption by the Buyer of any of the
obligations, liabilities or responsibilities of the Seller under the Rental
Agreements, including, without limitation, those of maintenance, repair,
replacement, upgrade or warranty.
(b) The Purchase Price for each Rental Agreement and the Equipment subject
thereto sold by Seller to Buyer hereunder shall be the present value of the
aggregate of the payments due and to become due under the related Rental
Agreement [C.I.] as agreed to by Buyer and Seller set forth in the Purchase
Agreement.
2. CONDITIONS TO PURCHASE. The obligation of the Buyer to purchase the Rental
Agreement, Equipment and all right, title and interest associated therewith of
an approved Renter is subject to the satisfaction of the following conditions:
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
(a) Receipt of an invoice from Seller to Buyer in the amount agreed upon as the
purchase price for the Equipment and Rental Agreement.
(b) Receipt by Buyer of the Purchase Agreement;
(c) The delivery to Buyer of the Rental Agreement;
(d) Receipt by Buyer of such other documents, instruments, agreements and other
writings as may be reasonably requested by the Buyer to effectuate the
transactions contemplated by this Agreement;
(e) Immediately prior to selling the Equipment or the Rental Agreements to the
Buyer, the Seller shall not be in default in the performance of any covenant or
agreement set forth in this Agreement, the Rental Agreements or in any other
document executed in connection therewith;
(f) The receipt of satisfactory evidence of insurance from Renter in a
sufficient amount to cover the full replacement cost of the Equipment; and
(g) Acceptance of the Equipment by the Renter as evidenced by the execution of a
Delivery and Acceptance Certificate by Renter (substantially in the form as set
forth in Exhibit "C") or by such other method that Buyer, in its sole
discretion, uses to ascertain Renter's unconditional acceptance of the
Equipment.
(h) Receipt by Buyer of the first rental payment due from the Renter.
Buyer will purchase and pay Seller for the applicable Equipment and Rental
Agreement [C.I.] after satisfaction of all of the conditions described in this
paragraph 2. The Seller's acceptance of the purchase price in respect to any
Rental Agreement shall be deemed a representation and warranty to the Buyer that
all of the representations and warranties of the Seller contained in this
Agreement and the other documents executed in connection therewith are true and
correct as of the date of purchase.
3. REPRESENTATIONS AND WARRANTIES. (a) Seller represents, warrants, covenants
and guarantees to Buyer (which shall survive the execution, delivery and
performance of this Agreement), as of the date of this Agreement and as of the
date of each purchase of Equipment and purchase of a Rental Agreement, that:
(i) Seller is a corporation duly organized and in good standing under the
laws of the State of New Jersey;
(ii) Seller has the corporate power, authority and legal right to enter
into, and to take all action necessary to authorize the execution, delivery
and performance of this Agreement; and
(iii) Seller is the sole and absolute owner of the Equipment and has the
absolute right to sell the Equipment to Buyer free of any claim, lien,
encumbrance or security interest of any nature.
(b) Seller further represents and warrants that each Rental Agreement assigned
to Buyer (i) has been duly executed by the Renter and Seller and that no
material misrepresentation will have been made by Seller, its employees or
agents to the Renter; (ii) is the only Rental Agreement covering the Equipment
and the signatures thereon of both Renter and Seller are genuine and in all
respects what they purport to be and are properly authorized; (iii) is not
subject to any written or oral understanding, agreement or representation made
by Seller to the Renter not contained in the Rental Agreement, including but not
limited to any representation that this agreement is terminable without cause
(iv) has not been altered in any material way since its execution by the Renter,
except as may have been agreed in writing, signed by an executive officer of
Buyer; (v) is in full force and effect; (vi) covers only Equipment which is was
new or refurbished by Seller at the time of the execution of the Rental
Agreement, unless otherwise disclosed to
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
and approved by Buyer in writing; (vii) is free of disputes, offsets, defaults,
and adverse claims that could effect the obligation of the Renter to make the
payments due thereunder, (viii) each Renter has been directed or will be
directed to make all payments under the Rental Agreement to a lock box or other
similar facility over which Buyer or its assignee has sole and exclusive
control.
(c) Seller further represents that Seller will fully comply with the provisions
of the Rental Agreements with respect to maintenance, warranty, service, upgrade
and repair of Equipment and all agreements entered into with Renter relating
thereto.
(d) Buyer represents, warrants, covenants and guarantees to Seller (which shall
survive the execution, delivery and performance of this Agreement), as of the
date of this Agreement and as of the date of each purchase of Equipment and
purchase of a Rental Agreement, that:
(i) Buyer is a corporation duly organized and in good standing under the
laws of the Commonwealth of Pennsylvania;
(ii) Buyer has the corporate power, authority and legal right to enter
into, and to take all action necessary to authorize the execution, delivery
and performance of this Agreement.
4. ADMINISTRATION. (a) Invoices will instruct each Renter to make all payments
of any kind whatsoever under the Rental Agreement to the order of Buyer at an
address and/or lock box as may be designated by Buyer. Upon a default by Seller
or a Renter under a Rental Agreement or by Seller under this Agreement, Buyer
shall be entitled to notify the Renter of the purchase and exercise all rights
under the Rental Agreements.
(b) With respect to each Rental Agreement assigned to Buyer hereunder, Seller
shall (i) handle all related Renter service requests, inquiries, communications
and correspondence and refer to Buyer all matters related to a Renter request
for a payoff, modification, rewrite, extension, restructure or any other
amendment, the consent of which shall be [C.I.] of [C.I.]; (ii) instruct all
Renters to remit all payments to Seller at an address as designated solely by
Buyer; (iii) remit all payments to Buyer promptly upon Seller's receipt of same;
(iv) at the request of Buyer assist Buyer in its collection efforts of
delinquent Renter accounts for past due payment amounts; (v) notify Buyer should
Seller ascertain or be advised that the Equipment subject to a Rental Agreement
is no longer in the Renter's possession or has been removed from the location
set forth in the Rental Agreement or it the Rental Agreement is otherwise in
default; and (vii) Seller shall train the field sales people on the proper
method to properly utilize the documentation and materials supplied by Buyer.
(c) In circumstances requiring that Seller replace a defective unit of Equipment
or upgrade any item of Equipment, the Seller will replace such defective unit or
upgrade (without expense to the Buyer) and such replacement or upgraded
Equipment, shall be free and clear of all liens and such Equipment shall
immediately, upon substitution, be deemed and shall actually become a part of
the Equipment and be subject to the terms of this Agreement and the Rental
Agreement.
(d) Other than with respect to the administrative functions set forth in this
paragraph 4, nothing contained herein shall establish an agency relationship
between Seller and Buyer nor shall either of them have any authority to bind the
other unless specifically set forth herein.
5. INDEMNIFICATION. (a) Buyer shall indemnify and hold Seller and its respective
officers, directors and employees harmless from and against any demand, claim,
action, cost, loss, liability, damage or expense of any kind, including without
limitation reasonable attorney's fees, arising from or in connection with
Buyer's breach of any warranty, representation, covenant or obligation contained
herein.
(b) Seller shall indemnify Buyer and its respective officers, directors,
employees from and against any demand, claim, action, cost, loss, liability,
damage or expense of any kind, including without limitation reasonable
attorney's fees, arising out of or in connection with: (i) Seller's breach of
any representation,
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
warranty, covenant or obligation contained in this Agreement or any of the
Rental Agreements (ii) the Equipment, including without limitation, the
manufacture, selection, delivery, possession, or Use of the Equipment, (iii) the
Maintenance, Service and Upgrades, and (iv) any warranties, expressed or
implied, given by Seller with respect to the Equipment or Maintenance.
(c) Any party claiming a right to indemnification under the provisions of this
paragraph shall give prompt written notice to the other party of its claim for
indemnification.
6. REPURCHASE OBLIGATIONS OF SELLER: (a) In the event that Seller materially
breaches (i) any representation or warranty made by Seller herein or in the
Rental Agreement, or (ii) Seller materially breaches any covenant or other
obligation contained herein or in the Rental Agreement and Seller has not
corrected such material breach or (iii) a Renter returns the Equipment to Buyer,
or (iv) a Renter defaults on any Rental Agreement for any reason, Seller shall
within [C.I.] after Buyer's written demand repurchase from Buyer the Rental
Agreement and Equipment to which such breach relates.
(b) The repurchase price for each such Rental Agreement (the "Repurchase Price")
shall be the aggregate of the following:
(i) An amount equal to all accrued and overdue payments and other sums then
due and owing to Buyer plus the present value of the remaining payments due
from Renter during the remaining term of the Rental Agreement and Buyer's
[C.I.] in the Equipment, [C.I.] and
(ii) All out -of-pocket expenses incurred by Buyer in connection with the
enforcement of this Agreement or the Rental Agreement, including but not
limited to reasonable attorney's fees and costs [C.I.] the Repurchase Price
[C.I.] at [C.I.].
(c) Buyer's delay or failure to exercise any of its rights hereunder shall
[C.I.] to be [C.I.] of [C.I.]. Upon Buyer's receipt of the Repurchase Price, the
related Rental Agreement and Equipment shall be reassigned to Seller [C.I.].
7. LIMITED AUTHORITY. The Seller hereby grants Buyer the limited authority
solely as set forth in this Agreement to ask, require, demand, receive, endorse,
compound, accept and deposit in respect of any and all monies and claims for
monies due and to become due in connection with the Equipment and Rental
Agreements and to endorse any checks or other instruments or orders in
connection therewith and to file any claims or take any action or institute any
proceedings which the Buyer or its designee may deem to be necessary or
appropriate. The Seller also agrees to sign such further reasonable documents as
may be necessary to facilitate any lock box or other similar collection process
in respect of the payments due under the Rental Agreements to facilitate the
terms of this Agreement.
8. MISCELLANEOUS. Any notice, consent or communication concerning this Agreement
will be considered sufficient if sent (a) registered or certified mail, or (b)
by facsimile and first-class mail. Any changes in the Agreement must be accepted
in writing by both parties. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and assigns, except that the Seller may [C.I.] or otherwise [C.I.] of
its [C.I.] under this Agreement [C.I.] the [C.I.] of [C.I.]. The Buyer may
[C.I.] or [c.i.] of its [C.I.] under this Agreement or the Rental Agreement or
other documents [C.I.] or otherwise [C.I.] the [C.I.] of [C.I.]. If the Buyer
[C.I.] under this Agreement, then the Seller shall [C.I.] any [C.I.] any such
[C.I.] which [C.I.] Buyer.
9. GOVERNING LAW AND FORUM. This Agreement shall be governed by and interpreted
in accordance with the laws of the State of Pennsylvania, without regard to
principles of conflicts or choice of law. Seller agrees that any action
hereunder shall be brought only in a Federal or State location in Pennsylvania
and Seller agrees to such jurisdiction. Nothing shall prohibit Buyer from
commencing any proceeding in any other forum over which jurisdiction can be
conferred upon the Seller.
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
10. NO WAIVERS. No failure or delay by Buyer or Seller in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise or the
exercise of any other right, power or privilege. The rights and remedies of the
Buyer and the Seller under this Agreement shall be cumulative and not exclusive
of any rights or remedies provided by law or any of the accompanying documents.
11. MISCELLANEOUS.
(a) The headings or titles of the various paragraphs of this Agreement are
inserted merely for the purpose of convenience and do not affect the
meaning or interpretation of the paragraph so designated; and
(b) This Agreement may be executed in one or more counterparts, each of which
shall be deemed an original, but all of which together shall constitute one
and the same agreement.
IN WITNESS WHEREOF, the parties have caused their respective duly authorized
officers to execute this Agreement all effective on the date first above
written.
DUSA PHARMACEUTICALS, INC. AURIC CAPITAL CORP.
BY: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------- -------------------------------
NAME: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇ NAME: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------ -----------------------------
TITLE: VP of Finance & CEO TITLE: CEO
----------------------------- ----------------------------
DATE: April 18, 2002 DATE: April 20, 2002
------------------------------ -----------------------------
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
EXHIBIT "A"
AURIC CAPITAL CORP.
▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ RENTAL AGREEMENT AGREEMENT NUMBER
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
THIS DOCUMENT IS WRITTEN IN "PLAIN ENGLISH". THE WORDS YOU AND YOUR REFER TO THE CUSTOMER/RENTER. THE WORDS WE,
US, AND OUR REFER TO AURIC CAPITAL CORP. AS LESSOR, TOGETHER WITH ITS SUCCESSORS AND ASSIGNS. EVERY ATTEMPT HAS
BEEN MADE TO ELIMINATE CONFUSING LANGUAGE AND CREATE A SIMPLE, EASY-TO-READ AGREEMENT.
CUSTOMER SUPPLIER
------------------------------------------------------------------ ----------------------------------------------------
Legal Business Name
DUSA PHARMACEUTICALS, INC.
------------------------------------------------------------------ ▇▇ ▇▇▇▇▇ ▇▇▇▇▇
Tax I.D. Number ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
------------------------------------------------------------------ Sales Person:
--------------------------------------
------------------------------------------------------------------
Business Address
------------------------------------------------------------------
Business Phone Number Fax Number Email Address
------------------------------------------------------------------
Home Address and Phone Number
------------------------------------------------------------------
Medical License Number Social Security Number
1. EQUIPMENT
QUANTITY MODEL # DESCRIPTION SERIAL #
------------- ---------- ------------------------------------- --------
1 BLU-U(R) 4170 Photodynamic Therapy Illuminator
2. RENTAL TERM (APPLICABLE TAXES ARE IN ADDITION TO THE PAYMENT SHOWN.)
INITIAL RENTAL TERM: 36 MONTHS COMMENCEMENT DATE:
--------- -------------------------------------
AGGREGATE RENTAL PAYMENTS: MONTHS [C.I.] = [C.I.]; MONTHS [C.I.] = [C.I.]; AND
MONTHS [C.I.] = [C.I.].
This Rental Agreement may be terminated at any time by Customer upon 30 days'
prior written notice. Customer shall only be obligated to pay those rental
payments that have accrued up to an including the date of termination. Monthly
rental charges of the first six months of this Rental Agreement shall accrue but
such payments shall be deferred until month seven. The initial rental payment of
[C.I.] shall be due the first day of the seventh month following the
Commencement Date. Each subsequent monthly rental payment shall be payable on
the first day of the month thereafter in an amount of [C.I.]. You shall have the
following options at the end of the original Rental Agreement term, provided the
Agreement has not terminated early under the terms and no event of default under
the Agreement has occurred and is continuing:
1) Purchase the Equipment for its fair market value
2) Renew this Rental Agreement in accordance with paragraph 1
of the Terms and Conditions
3) Return the Equipment as provided in paragraph 6 of the Terms
and Conditions
3. SIGN THE RENTAL ACCEPTANCE/DELIVERY AGREEMENT (APPLICABLE TAXES ARE IN
ADDITION TO THE PAYMENT SHOWN.)
This Rental Agreement incorporates the Terms and Conditions set forth on the
back page of this Rental Agreement, which are made a part of this Rental
Agreement by Reference. Customer acknowledges reading and understanding the
Terms and Conditions of this Rental Agreement. Upon our written confirmation of
delivery and acceptance of the Equipment indicated above, your promises herein
shall be irrevocable and unconditional in all respects. If [C.I.] this agreement
[C.I.], you hereby agree that [C.I.] have all of [C.I.] and [C.I.] but none of
[C.I.] herein and that you will [C.I.] to [C.I.] as [C.I.], and to the
manufacturer of the Equipment for warranty information. You understand and agree
that in the event that you are not satisfied with the delivery and installation
of the Equipment, you shall [C.I.] to entities [C.I.], such as the Supplier,
manufacturer, installer, or carrier and shall [C.I.] any [C.I.] that you [C.I.]
with reference to the Equipment or its installation [C.I.]. By signing below you
hereby authorize your banks, trade references and financial institutions to
release credit information over the phone to us. The Rental Agreement is not
valid until it is accepted by us as evidenced by our signature below.
Date of Acceptance Customer Signature Title
------------------- -------------------- --------------------------
4. SIGN THE GUARANTY (PLEASE DO NOT INCLUDE A BUSINESS TITLE) (APPLICABLE
TAXES ARE IN ADDITION TO THE PAYMENT SHOWN.)
As an additional inducement for us to enter into this Rental Agreement, the
undersigned ("you") unconditionally personally guarantees that the customer will
make all payments and meet all obligations required under this Rental Agreement
and any supplements fully and promptly. You agree that we may make other
arrangements including compromise or settlement with the customer and you waive
all defenses and notice of those changes and will remain responsible for the
payment and obligations of this Agreement. We do not have to notify you if the
customer is in default. If the customer defaults, you will immediately pay in
accordance with the default provision of the Agreement all sums due under the
original terms of the Agreement and will perform all other obligations of the
Rental Agreement. If it is necessary for us to proceed legally to enforce this
Guaranty, you expressly consent to the jurisdiction of the court set forth in
paragraph 15 and agree to pay all costs, including attorneys fees incurred in
enforcement of this Guaranty. It is not necessary for us to proceed first
against the customer before enforcing this Guaranty. By signing this Guaranty,
the undersigned consents to and authorizes the use of his/her consumer credit
report by us from time to time as may be needed in the credit and collection
process and further authorizes banks, trade references, credit bureaus, and
financial institutions the right to release personal and business information
via fax or over the phone to us or our assignee for purposes of reviewing this
application for business credit.
---------------------------------------------- ----------------------------------------------
SIGNATURE OF PERSONAL GUARANTOR DATE SIGNATURE OF PERSONAL GUARANTOR DATE
---------------------------------------------- ----------------------------------------------
PRINT NAME HOME PHONE NUMBER PRINT NAME HOME PHONE NUMBER
---------------------------------------------- ----------------------------------------------
HOME ADDRESS (NOT P.O.) HOME ADDRESS (NOT P.O.)
ACCEPTED BY:
AURIC CAPITAL CORP.
Name Signature Title Rental Commencement Date
Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
TERM AND CONDITIONS
THIS IS A NONCANCELLABLE/NONREVOCABLE LEASE. THIS LEASE CANNOT BE CANCELLED OR
TERMINATED EXCEPT AS EXPRESSLY PROVIDED HEREIN.
1. RENTAL AGREEMENT: You agree to rent from us the personal property,
described in Section 1 "Describe Equipment" on the first page of this
Rental Agreement and as modified by supplements to this Rental Agreement
from time to time signed by you and us (such property and any upgrades,
replacements, repairs, and additions referred to as the "Equipment'), for
business purposes only. You agree to all the terms and conditions contained
in this Rental Agreement and any supplement, which together are a complete
statement of our Rental Agreement regarding the Equipment ("Rental
Agreement") and supersedes any purchase order or outstanding invoice you
may have with us or the supplier. This Rental Agreement may be modified
only by written agreement and not by course of performance. This Rental
Agreement becomes valid upon execution by us and will begin on the date the
Equipment is accepted by the Lessee for use, or ten (10) days after the
Equipment is installed by us whichever is first, (the "Rental Commencement
Date") and will continue from the first day of the following month for the
number of consecutive months shown ("Initial Term"). The Initial Term will
be extended month-to-month unless you send us written notice that you do
want it renewed at least 120 days before the end of the Initial Term or of
any extension term. If any provision of this Rental Agreement is declared
unenforceable in any jurisdiction, the other provisions will remain in full
force and effect in that jurisdiction and all others. The monthly payment
for the month of rent commencement ("Interim Rent") will be prorated for
the period from the Rental Commencement Date to the last day of the month
in which the rent commenced.
2. RENT: Rent will be payable in installments, each in the amount of the
Monthly Rental Payment shown plus any applicable sales tax or use tax, plus
1/12th of the amount estimated by us to be personal property tax on the
Equipment for each year of this Rental Agreement. If we pay any tax on your
behalf, you agree to reimburse us promptly. You will pay the security
deposit on the date you sign this Rental Agreement. Subsequent installments
will be payable on the first day of each month beginning on the first day
of the month following the Commencement Date whether you receive an invoice
from us or not. Interim Rent will be billed when known by us and will be
payable within ten days of the date of the invoice. We will have the right
to apply all sums received from you to any amounts due and owed to us under
the terms of this Rental Agreement. In the event this Rental Agreement is
not fully completed by you, we will retain the security deposit to
compensate us for our documentation, processing and other expenses.
3. COMPUTER SOFTWARE: Notwithstanding any other term and condition of this
Rental Agreement, you agree that, as to software: (a) we have not had, do
not have, nor will have any title to such software, (b) you have executed
or will execute a separate software license Rental Agreement and we are not
a party to and have no responsibilities whatsoever in regard to such
license agreement, and (c) you have selected such software consistent with
the representations in paragraph 5 of this Rental Agreement. WE MAKE NO
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE AND TAKE
ABSOLUTELY NO RESPONSIBILITY FOR THE FUNCTION OR DEFECTIVE NATURE OF
SOFTWARE.
4. OWNERSHIP OF EQUIPMENT: We are the owner of the Equipment and have sole
title to the Equipment (excluding software).
5. WARRANTY DISCLAIMER: WE MAKE NO WARRANTY, EXPRESS OR IMPLIED, INCLUDING
THAT THE EQUIPMENT IS FIT FOR A PARTICULAR PURPOSE OR THAT THE EQUIPMENT IS
MERCHANTABLE. YOU AGREE THAT YOU HAVE SELECTED EACH ITEM OF EQUIPMENT BASED
ON YOUR OWN JUDGMENT AND DISCLAIM ANY RELIANCE UPON ANY STATEMENTS OR
REPRESENTATIONS MADE BY US. NOTHING WE STATE CAN AFFECT YOUR OBLIGATION
UNDER THIS RENTAL AGREEMENT. YOU WILL CONTINUE TO MAKE ALL PAYMENTS DUE
UNDER THIS RENTAL AGREEMENT TO US OR ANY ASSIGNEE REGARDLESS OF ANY CLAIM
OR COMPLAINT AGAINST US OR THE EQUIPMENT.
6. LOCATION OF EQUIPMENT: You will keep and use the Equipment only at the
address shown above and you agree not to move the Equipment unless we agree
to the move. At the end of the Initial Term, or any extension, thereof or
the earlier termination of this Rental Agreement, you will return the
Equipment to a location we specify at your expense, in retail resaleable
condition, good working order and complete repair. The terms of this Rental
Agreement shall automatically month-to-month if the Equipment is not
returned [C.I.] of the termination of this Rental Agreement.
7. LOSS OR DAMAGE: You are responsible for the risk of loss, destruction or
damage to the Equipment. No such loss or damage relieves you from the
payment of Rent or any of your obligations under this Rental Agreement. You
agree to promptly notify us in writing of any loss or damage and you will
pay to us the present value of the total of all unpaid Monthly Rental
Payments for the full rent plus the estimated fair market value of the
Equipment at the end of the Initial Term or other scheduled termination
date, all [C.I.]. Any proceeds of insurance will be paid to us and applied,
at our option, against any loss or damage.
8. COLLATERAL PROTECTION AND INSURANCE: You agree to keep the Equipment fully
insured against loss, with us named as loss payee, in an amount not less
than replacement cost of the Equipment until this Rental Agreement is
terminated. You also agree to obtain a general public liability insurance
policy from an insurer who is acceptable to us and to include us as a named
insured on the policy. You agree to provide us a certificate or other
evidence of property damage and liability insurance acceptable to us before
this Rental Agreement begins, or we will enroll you in our insurance
program and ▇▇▇▇ you an insurance surcharge as a result of our increased
credit risk and administrative costs. As long as you remain current in the
payment of Rent, we will apply an amount from the insurance coverage equal
to the replacement cost of the Equipment against the amount of any loss or
damage as calculated in paragraph 7. YOU MUST BE CURRENT TO BENEFIT FROM
THIS PROGRAM. NOTHING IN THIS PARAGRAPH WILL RELIEVE YOU OF YOUR
RESPONSIBILITY FOR LIABILITY INSURANCE COVERAGE ON THE EQUIPMENT.
9. INDEMNITY: We are not responsible for any loss or injuries caused by the
installation or use or possession of the Equipment. You agree to hold us
harmless and reimburse us for any loss and to defend us against any claim
(including strict liability in tort) for losses or injury caused by the
Equipment or its use or possession.
10. TAXES AND FEES: You agree to pay when due all taxes (including personal
property tax), fees, fines and penalties relating to this Rental Agreement
and the Equipment. lf we pay any of the foregoing for you, you agree to
reimburse us and to pay us a [C.I.] for each payment we make on your
behalf. You also agree to pay us any filing fees related to us perfecting
our security interest (or making a protective filing) in the Equipment in
accordance with the Uniform Commercial Code or other law. You further agree
to pay us [C.I.] on the date of the first Monthly Rental Payment to cover
our expense in originating this Rental Agreement.
11. ASSIGNMENT: YOU HAVE NO RIGHT TO SELL, TRANSFER, ASSIGN OR SUBLEASE THE
EQUIPMENT OR THIS RENTAL AGREEMENT. [C.I.] this Rental Agreement. You agree
that, if [C.I.] this Rental Agreement, the [C.I.] will have the [C.I.] and
[C.I.] that [C.I.] and will not have to perform [C.I.]. You agree that the
[C.I.] of the [C.I.] will not be subject to [C.I.] that you may [C.I.].
12. DEFAULT AND REMEDIES: If you do not pay any Rent or sum due us or any other
party when the same is due, or if you break any of your promises in this
Rental Agreement or any other agreement with us, you will be in default. If
any part of a payment is late, you agree to pay a late charge equal to 15%
of the late payment, or the maximum amount allowed by law, whichever is
less. If you are ever in default, we may retain your security deposit and,
at our option, we can terminate or cancel this Rental Agreement and require
that you pay the unpaid balance of this Rental Agreement ([C.I.]). In
addition to the foregoing we may require you to pay the amount of any
purchase option or, if no purchase option is specified, our estimate of the
Fair Market Value of the Equipment which will be at least [C.I.] of tour
original cost of the Equipment which represents our anticipated residual
value of the Equipment, or to return the Equipment to us to a location
designated by us. We may recover interest of any unpaid balance at the rate
of 18% per year or the maximum rate allowed by law. We may also use any of
the remedies available to us under Article 2A of the Uniform Commercial
Code as enacted in the State of New Jersey, or any other law. If we refer
this Rental Agreement to an attorney for collection, you agree to pay our
reasonable attorney's fees and actual costs, including court costs, of
collection. If we have to take possession of the Equipment, you agree to
pay the cost of repossession. YOU AGREE THAT WE WILL NOT BE RESPONSIBLE FOR
ANY CONSEQUENTIAL OR INCIDENTAL DAMAGES DUE TO ANY DEFAULT BY US UNDER THIS
RENTAL AGREEMENT. You agree that any delay or failure to enforce our rights
under this Rental Agreement does not prevent us from enforcing any rights
at a later time. It is further agreed that your rights and remedies are
governed exclusively by this Rental Agreement and you waive any and all
other rights and remedies.
13. UCC FILINGS: You grant us a security interest in the Equipment if this
Rental Agreement is deemed a secured transaction and you authorize us to
record a UCC financing statement or similar instrument, and you hereby
appoint us your attorney-in-act to execute and deliver such instrument in
order to record our interest in the Equipment.
14. LAW: This Rental Agreement shall be governed by, and construed and enforced
in accordance with the law of the State of New Jersey. You expressly
consent to jurisdiction and venue of any state or federal court in the
State of New Jersey, or any other court chosen by us.
BY: (X) Agreement #
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Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
EXHIBIT "B"
PURCHASE AGREEMENT
FOR VALUE RECEIVED the undersigned Seller (the "Seller"), pursuant to that
certain Program Agreement dated as of April 18, 2002, together with all
exhibits, schedules, annexes and other attachments thereto, (the "Program
Agreement") between the Seller and AURIC Capital Corp., a Pennsylvania
Corporation (the "Buyer").does hereby assign, sell, transfer and convey to the
Buyer all of the Seller's right, title and interest in and to the Rental
Agreements (as substantially set forth in Exhibit "A"), the payments due
thereunder and the equipment described thereon (the "Equipment"). Unless
otherwise defined, all terms in the Program Agreement are used herein as therein
defined.
Buyer is authorized to deal with the Rental Agreement, the payments due
thereunder and the Equipment in such a manner and at such time as Buyer, in its
sole discretion, may deem advisable and take all legal and other proceedings
which Seller could have taken but for this Purchase Agreement. Notwithstanding
this Purchase Agreement, Seller shall remain liable to the Renter to perform all
of Seller's obligations under the Rental Agreements or other Agreements with the
Renter and Buyer shall not be required or obligated to perform any of such
obligations of Seller.
The Seller represents it has performed all of its obligations to be performed
under the assigned Renter Contract and is not otherwise in default thereunder,
nor is the Renter thereunder in default under the Rental Agreement.
The Seller hereby warrants that title to the Equipment will vest in Buyer and is
free and clear of all liens and encumbrances other than the rights of Renters
under the Rental Agreements.
1. The Selling Price for Equipment referenced under each Rental Agreement
is [C.I.].
2. Monthly rental charges for the first six months of each Rental
Agreement shall accrue but such payments shall be deferred until month
seven. The initial rental payment of [C.I.] shall be due the first day
of the seventh month following the Commencement Date. Each subsequent
monthly rental payment shall be payable on the first day of the month
thereafter in the amount of [C.I.].
The Seller hereby [C.I.] to [C.I.] by [C.I.] of in [C.I.] or to the [C.I.] of
all of [C.I.] and [C.I.] in and to [C.I.] and [C.I.] and [C.I.] to [C.I.] of
[C.I.] without [C.I.] or [C.I.] of [C.I.].
IN WITNESS WHEREOF the Seller has caused this Assignment to be executed by its
duly authorized officer as of __________________ 2002.
DUSA PHARMACEUTICALS, INC.
BY:
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NAME:
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Note: Certain portions of this document have been marked "[C.I.]" to indicate
that confidential treatment has been requested for this confidential
information. The confidential portions have been omitted and filed separately
with the Securities and Exchange Commission.
EXHIBIT "C"
DELIVERY AND ACCEPTANCE CERTIFICATE
Regarding the Rental Agreement dated _________________, 2002 between DUSA
Pharmaceuticals, Inc., a New Jersey corporation with its principal offices
located at ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇ ("Supplier") and ____________, a
_____________ with its principal offices located at ____________ ("Customer").
Customer hereby acknowledges receipt of the Equipment described in the User
Agreement, acknowledges that the Equipment has been fully installed and is in
good working order and condition, and Customer hereby accepts the Equipment,
after having made full inspection thereof, as satisfactory for all purposes
under the User Agreement. Customer acknowledges that Supplier has fully and
satisfactorily performed all covenants, warranties and conditions to be
performed by Supplier under the User Agreement.
DATE EQUIPMENT ACCEPTED:
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USER:
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BY:
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NAME:
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TITLE:
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